University of Texas Health Science Center at Tyler v. Nawab

On
Appeal from the County Court at Law No. 2 Gregg County, Texas
Trial Court No. 2015-680-CCL2

Before
Morriss, C.J., Moseley and Burgess, JJ.

OPINION

RALPH
K. BURGESS, JUSTICE

After
being warned that his progress in medical knowledge and
patient care was not satisfactory, Khurram Nawab, a
first-year resident in the University of Texas Health Science
Center at Tyler's (Texas Health's) Internal Medicine
Residency Program, was notified that his contract would not
be renewed for a second year. After his contract ended,
Nawab, who is of Pakistani descent, filed a charge of
discrimination with the appropriate state and federal
agencies alleging that Texas Health had discriminated against
him based on his race, color, and national origin and that he
had suffered retaliation by Texas Health. Subsequently, Nawab
filed this lawsuit against Texas Health asserting causes of
action under the Texas Commission on Human Rights Act (TCHRA)
for retaliation, [1] hostile work environment, and
discrimination based on his race, religion, and national
origin[2] and for intentional infliction of
emotional distress.[3]

Sixteen
months after the suit was filed, Texas Health filed a plea to
the jurisdiction, which the trial court granted in part,
dismissing Nawab's claims for religious discrimination,
intentional infliction of emotional distress, and punitive
damages.[4] However, the trial court denied the plea
as to Nawab's other claims under the TCHRA. In this
interlocutory appeal, [5] Texas Health challenges the trial
court's denial of its plea to the jurisdiction on
Nawab's remaining TCHRA claims. We will reverse the trial
court's judgment.

I.
Background

The
undisputed evidence shows that Nawab was admitted into Texas
Health's Internal Medicine Residency Program (the
Program) on July 1, 2012, as a PGY-1[6] resident. On October 3,
2012, Nawab was placed on academic remediation by the
Program's director, Dr. Emmanuel Elueze. In a meeting on
November 29, 2012, Elueze advised Nawab of ongoing concerns
with his progress in medical knowledge and patient care, of
concerns that he was not prepared for rounds, of his
tardiness, and of his lack of advancement from his previous
floor rotation. Nawab was also advised that based on his
performance at that point, he would not be advancing to
second year. Nawab and Elueze signed a written summary of the
November 29 meeting.

At a
subsequent meeting on February 6, 2013, Elueze and others met
with Nawab to follow up with his remediation and to inform
him of a recommendation from the Clinical Competency
Committee, which met on January 31. A summary of that
meeting, signed by Elueze and Nawab, states, in relevant
part,

Dr. Nawab has significant deficits in the core clinical
competencies of Medical knowledge, Patient Care and
Professionalism. Based on Dr. Nawab's current
performance, his contract will not be renewed at the end of
this academic year. This is also being communicated to him,
so that he can begin making other plans as appropriate for
him.

. . . .

The program will review Dr. Nawab's performance,
including if he will get full, marginal or no credit for the
academic year at April clinical competency committee meeting.

Dr. Elueze informed Dr. Nawab that in the next couple of
months, the program will need to see drastic improvement, not
minimal improvement.

In a letter dated April 26, 2013, Elueze informed Nawab, in
relevant part, as follows:

[The Program's] Clinical Competency Committee met on
April 25, 2013, to review and discuss the second quarter
multisource evaluations.

Following is an account of your report, and any necessary
action to be taken with your mentor or program
administration:

Performance: Remediation

Action: Non-renewal of contract

Apparently,
sometime after the non-renewal of his contract, Nawab
requested a review of the non-renewal by the Graduate Medical
Education Committee of Texas Health. By letter dated July 17,
2013, Dr. Jonathan MacClements, the Director of Medical
Education, informed Nawab that the committee had determined
that Nawab was provided with appropriate guidance,
opportunity to remediate, and notice of non-renewal in
accordance with the Program's handbook. On September 19,
2013, Nawab filed a charge of discrimination with the Texas
Workforce Commission Civil Rights Division (CRD) and the
Equal Employment Opportunity Commission, alleging that Texas
Health had discriminated against him based on his race,
color, and national origin and that it had retaliated against
him after he complained of harassment, ethnically offensive
comments, and mimicking of his accent. After receiving a
notice of right to file a civil action from the CRD, Nawab
filed this lawsuit on April 15, 2015.

In his
petition, Nawab made general allegations that he
"suffered instances of discrimination on the basis of
his Pakistani race . . . and national origin, " that
"[t]he core faculty members and employees" of Texas
Health "made offensive and derogatory comments during
the time that he was employed there, " and that after he
"complained about the way he was being treated . . .
[he] faced . . . numerous false allegation regarding his
competency." He also alleged that as a result of his
complaints, he was discharged as a medical resident and that
"[h]is termination, the retaliation[, ] and the
harassment were all on the basis of his race, religion[, ]
and national origin." Nawab's petition only recites
two factual examples supporting those allegations.

In the
first example, Nawab alleges that "[o]n one
occasion" Dr. Vazza-Zeid criticized him after he
performed a pap smear and "repeated the statements
[Nawab] made with the patient mocking his accent." His
second example states:

During Plaintiff[']s nephrology rotation with Dr. Vij,
Dr. V. Reddy, Dr. Shakamuri[, ] and Dr. McDonald, Plaintiff
experienced discrimination. Dr. Vij, Dr. V. Reddy and Dr.
Shakamuri were Hindu/Indian. Dr. V. Reddy asked where
Plaintiff was from and if he ate "Halal." Dr.
Shakamuri told Plaintiff a story about how the city of
Hyderabad, India[, ] was occupied by the Muslims and the
Hindu army came and kicked them out. Dr. Vij stated that
Plaintiffs medical knowledge was very weak and told the other
three attendees to fail Plaintiff[, ] and they did.

The
petition then asserts causes of action under the TCHRA for
retaliation, hostile work environment, and termination based
on his race, religion, and national origin.

Sixteen
months after filing its original answer, Texas Health filed
its plea to the jurisdiction challenging whether Nawab's
pleadings affirmatively showed the trial court's
jurisdiction and denying the existence of facts that would
give the trial court jurisdiction. Attached to the plea to
the jurisdiction were the affidavits of Elueze and
MacClements, the summaries of the November 29 and February 6
meetings, and a July 17 letter from MacClements. In addition
to asserting that Nawab had failed to exhaust his
administrative remedies, Texas Health asserted that Nawab had
failed to plead a cause of action under the TCHRA and
challenged the existence of facts that would show that Nawab
had a cause of action under the TCHRA.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Nawab
responded to the plea to the jurisdiction and attached his
own affidavit and the April 26 letter from Elueze. In his
affidavit, Nawab repeated the factual allegations made in his
original petition, adding that two doctors of Indian descent
were critical of him while they supported the Indian
residents, but otherwise did not allege any new facts that
could be described as discrimination based on race or
national origin.[7] After a hearing, the trial court granted
Texas Health's plea to the jurisdiction as to Nawab's
claims for ...

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